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Thought for the Day: Takanas HaShavim for Property, Kim Li, Muchzak

Here's something really cool I discovered tonight.  I have a Hebrew keyboard on my Android phone (no, that's neither cool nor a new discovery tonight).  I was looking for some help in understanding the meta-halachic concept of "kim li".  I'd only heard it, so I didn't even know how to spell it, certainly not what it meant.  (Again, not cool new discovery for me tonight; my ignorance knows few bounds.)  For kicks I typed "קים לי" into my Google app on my phone, and ... LO AND BEHOLD! there is a Hebrew Wikipedia page all about "קים לי"!  (Sigh... YES!  That's my new cool discovery.)

Now gather 'round and I'll tell you how this all started.

I heard a shiur from R' Fuerst, shilt"a, on another choshen mishpat question.  Shimon built a new 10 story office building.  A very successful endeavor, as all the office space was leased even before the building was finished.  As Shimon is giving the building one last inspection before the grand opening,  the owner of the neighboring empty lot -- we'll call him Reuvein -- drops by and drops a little rain onto Shimon's parade.  Reuvein informs Shimon that his beautiful new building encroaches on his empty lot to the tune of 30 cm (approximately one foot; yes, I know that 30cm is 11.8110236 inches, but 30 cm has at best only two significant figures and 11.8110236 to two significant figures is 12 in which is one foot.  So there.)  Shimon is quite apologetic and wants to immediately rectify the completely unintentional wrong that Reuvein has suffered.  Shimon offers to have the property appraised and will pay Ruevein top dollar for his lost foot of property.  Reuvein, however, stands his ground  (foot ... stands... get it?) and demands that Shimon return his property; ie, that Shimon shave 30 cm off his new office building.  That's 30 cm time 10 floors!  Reuvein then says... of course, if you don't want to essentially tear down your building, you can appease me by giving one one floor of your new building (which already has tenants). Shimon is flabbergasted; Reuvein stands his ground (you can't over use a pun).  What's the halacha?

The Torah ha'K'dosha says that stolen property must be returned, if possible.  Only if the property has been consumed or otherwise lost is one allowed to return the item's value instead of the item itself.  However, Chazal wanted to make it easier for a thief to do t'shuvah, so they decreed that if it would be onerous to return the stolen object (such as a beam built into a building), then the thief could return the value instead.  This policy is known as "takanas ha'shavim".  Sounds like Shimon is right.

Not so fast.  The gemara says that takanas hashavim does not apply to real property, only to movable property.  Basically, property can't be stolen because it is always right there.  So Reuvein is right.

Not so fast.  The Mabit says that means when property is intentionally stolen, then the property -- not it's value -- must be returned.  However, if the theft was unintentional, as in our case, then takanas hashavim kicks in and the value may be returned, instead.  The Aruch HaShulchan agrees.  Sounds like Shimon is right.

Not so fast.  The Mishna l'Melech and Erech Shai disagree; they hold that real property must always be returned; no ifs, ands, buts, nor equal value in cash.  Now what?  We have a machlokes ha'poskim with no clear consensus.  Now comes קים לי/kim li!  When it comes to Choshen Mishpat and there is a machlokes ha'pokim, the one who is "muchzak" -- that is, has control of the item in question -- has a right to say, "It is clear to me that the poskim who rule in my favor are right."  That works because in order to take something of value from a muchzak, you need a proof; aka, ha'motzi mei'chaveiro, alav ha'raiya.  (A nice synopsis in English is available here.)

Great!  Wait... who's the muchzak?  It is Reuvein and his property, or Shimon and his building?

In case you are interested, Shimon was able to keep his building intact and was only required to pay Reuvein fair market value for his property.  Besides all the cool concepts this case brings out, it also brings out the confidence we have in the Truth of our Torah.  The expression "put your money where you mouth is" means that you can tell if someone believes what he is saying if he is willing to invest his own money in it.  Orthodox Jews are constantly called to invest their entire portfolio -- monetary and spiritual -- in their beliefs.  And we do.

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